Judgment on TV3 Coverage in John Banks Trial

This
judgment was delivered by Justice Wylie on 28 May 2014
at 3.00 pm Pursuant to r 11.5 of the High Court Rules

Introduction

[1] On 26 May 2014,
I revoked the permission I had earlier given to TV3/Media
Works, to film the trial of the Honourable John Banks. I
also directed that TV3/Media Works is not to use any footage
captured in the courtroom in its coverage of the balance of
the trial. I gave brief reasons for these orders and
indicated that I would issue this judgment, recording rather
more fully the reasons for my orders.

[…]

Analysis

[24] The history of
in-court media coverage, including the use of cameras in
courts, is helpfully summarised in the consultation paper
prepared by the committee set up by the Chief Justice to
review such coverage.6 In short, prior to 1991, cameras were
not allowed in courts. A consultative committee was then set
up to consider the position and various arguments for and
against the filming of court proceedings were considered. In
the event, a pilot scheme was established. It allowed
limited television recording for delayed broadcast. In 1995,
a further working party was established to further consider
the issues raised by the television coverage of court
proceedings, and also of the conduct of the pilot. Draft
rules were prepared to govern filming in courtrooms. The
issue was debated at a Higher Court Judges’ conference in
1999, and various recommendations made by the consultative
committee were adopted. Inter alia, the rules which had
applied to the pilot programme were incorporated, with some
modifications into new guidelines, together with a voluntary
code of conduct for the media.

[25] Some concerns about
the operation of the guidelines arose in the following
years, and in 2003, new guidelines were adopted. The new
guidelines provided a more detailed formulation of the
procedures that were to apply, and dispensed with the
voluntary code of conduct.

[26] In 2012, there were a
number of amendments to the 2003 guidelines. The In-Court
Media Coverage Guidelines 2012 were adopted as a result, and
as I have noted, they apply to all proceedings in this
Court.

[27] There are a number of competing interests
when in-court media coverage is being considered. I cite
from the consultation paper.

[35] There are two
dominating principles that must be considered when the issue
of in-court media coverage is considered, both recognised by
the New Zealand Bill of Rights Act 1990. The first is the
principle of open justice; the concept that the fullest
access of the public and the media to court proceedings is
in the interests of the community.7 Related to this is the
often expressed concept that the media is the surrogate of
the public; its eyes and ears, and that it is through media
publications that the public has access to and can gain
knowledge of what happens in courts. The right of the media
to attend and report on court proceedings is long
established and now recognised by statute.

[36] The
second is the right of a defendant to a fair trial, a right
identified and protected by s 25(a) of the New Zealand Bill
of Rights Act 1990. That right dictates that there must be
no potential interference with the fair trial rights of
those accused of crime in New Zealand. For that reason, it
is sometimes said that the right to a fair trial trumps open
justice.8 The interaction between the two competing rights
was described by the United States Supreme Court in 1980 as
being “as old as the Republic”.9

[37] In New Zealand
in 2014 there are other related and overlapping concepts
relevant to media coverage of court proceedings; that of
freedom of information, the capacity for better coverage of
the courts to further the community’s understanding of
their work, the protection of confidentiality, privacy
interests (including those of children, victims and other
exposed members of the community), and the orderly and fair
administration of justice. There is also the principle that
vulnerable people like children and victims should be
protected from the damaging glare of publicity.

[28]
Against this background, I turn to consider the footage
which was broadcast by TV3/Media Works.

[29] I start by
considering Mr Banks’ position. He is a defendant in
criminal proceedings. He is presumed to be innocent until he
is proven guilty. He is entitled to be treated with dignity
and respect, notwithstanding that he is charged with an
offence. He is also entitled to expect that the Court’s
direction requiring those filming the trial to comply with
the standard conditions for in-Court film coverage will be
complied with.

[30] Secondly, I observe that the media
have no right as such to film court proceedings. They do so
at the discretion of the Judge running the trial. A Judge
will always be alive to the fair trial rights of a
defendant, and also to the media’s role as the “eyes and
ears” of the general public. Media applicants can expect
that the discretion whether or not to allow the filming of a
trial will be exercised by reference to the exigencies of
each case, but subject to the overarching principle that the
fair trial rights of the defendant must not be put at risk.

[31] Thirdly, I note that where permission to film is
accorded to a media applicant, and the court directs that
the standard conditions are to apply, it is a breach of the
court’s order, and therefore a contempt of court, if the
conditions are then ignored. Further, the court is entitled
to expect that any permission granted will be exercised
responsibly, with restraint, and with due respect for the
dignity of the court and its processes. The Court expects,
and the standard conditions for filming require, that film
taken will be used having regard to the importance of the
fair and balanced reporting of trials, and that it will not
be published or broadcast out of context.

[32] Fourthly,
it can be argued that the broadcasting of film and the
publication of photographs of a defendant at trial is a form
of public humiliation.10

[33] In the present case, I am
in no doubt that the footage of Mr Banks broadcast by
TV3/Media Works in the 6 o’clock news bulletin on 22 May
2014 was neither fair, nor balanced. It did not respect Mr
Banks’ rights. It was gratuitous and tasteless. The
justifications advanced by Ms Bradley were, in my view,
disingenuous. The footage broadcast did not show Mr Banks’
reaction to the interview being played in court. Rather, it
was a sideshow broadcast seemingly to entertain. It is
difficult to escape the conclusion that the broadcast was
intended to expose Mr Banks to ridicule and/or derision.
There was, in my judgment, no news value in the footage at
all, and no public interest was served by broadcasting it.
In my judgment, TV3/Media Works’ decision to broadcast the
footage was irresponsible and it reflects no credit on the
organisation.

[34] Condition 16 of the standard
conditions for the filming of a trial has been breached.

[35] Further, condition 9(b) has been breached.

[36]
The film was taken during the afternoon session, and not
during the first 15 minutes of the sitting day. The court
sitting started at 10.00 am on 22 May 2014. The camera
should have been turned off at 10.15 am. That did not
happen. Rather, the camera was pointed at Mr Banks. It was
left on.

[37] I am told that the camera was being
operated by a TVNZ/One News cameraman. A Ms Wynn-Williams,
who is a journalist employed by TVNZ, asked to address me
during the hearing. She confirmed that the camera was being
operated by a TVNZ camera operator. She told me, however,
that TVNZ/One News did not “record” the footage. I am
not sure that I altogether understand the process and I am
directing the Registrar to write to the Editor-in-Chief of
TVNZ/One News to find out why the camera was filming and
what processes were being followed at the time. It may be
that TVNZ/One News has also breached condition 9(b). I do
note, however, that it did not broadcast the offending
footage. TV3 clearly made its own decision to record the
footage, and then to run that footage on its news programme.

[38] I was initially concerned that condition 15 may have
been breached.

[39] It seems that the film taken has been
used other than on the programmes or on the websites
nominated by TV3/Media Works in the application form. As I
understand it, the footage is now available on YouTube. I
accept Ms Bradley’s assurance that nobody at TV3 has put
the footage on YouTube, or actively facilitated the footage
being placed in the social media. I accept her explanation
that a digital recording can be made from a television
broadcast, and that it can then be put on YouTube.

[40]
In my view, the apparent ease with which publicly broadcast
material can be disseminated on the internet reinforces the
need for the media to act responsibly, with due regard for
the rights of defendants, for the administration of justice,
and for the integrity of the court's processes generally. If
I thought that TV3/Media Works had put the footage on
YouTube or used it on some programme or website other than
those nominated in the application, I would have taken a
very dim view of this matter.

[41] I do acknowledge that
Mr Banks’ fair trial rights have not been put at risk in
this case. The trial is proceeding before me sitting as a
Judge alone. I also acknowledge that TV3/Media Works did act
responsibly in promptly removing the footage from its
archives accessible through its website, and that it has
publically apologised to the court and to Mr Banks.
Nevertheless, the breaches of the media guidelines are
serious, and they require a sanction. The standard
conditions have been drawn up for good reason. My order
imposing the standard conditions was also made for good
reason. TV3/Media Works has breached my order and the
standard conditions.

[42] It was for these reasons, that
I revoked TV3/Media Works’ right to continue to film the
balance of the trial, the delivery of the verdict, the
reasons for that verdict, and any sentencing, in the event
that Mr Banks is found guilty. Given the sharing agreement I
have referred to above at [12], it was also necessary to
order that TV3/Media Works does not use any footage captured
in the courtroom for the balance of the trial.

Further Matters

[43] I record that I
have issued my reasons as a judgment, to ensure that they
are put in the public domain, and so that they will be
readily available to other media organisations and to Judges
faced with applications to film court proceedings.

[44] I
also direct that a copy of this judgment be forwarded to the
Chair of the Chief Justice’s Review Committee currently
considering in-court media coverage.

[45] The Registrar
is to write to the Editor-in-Chief of TVNZ/One News. The
Registrar is to ask the Editor-in-Chief:

(a) whether the
in-court camera was being operated by a TVNZ/One News camera
operator on 22 May 2014;

(b) if so, why was the camera
left on outside the 15-minute window allowed by condition
9(b) of the standard conditions for filming in courtrooms;
and

(c) how filming in courts takes place. In particular,
when a camera is left running, is the film recorded, if so,
where, and how can it later be accessed for editing
purposes.

The reply from the Editor-in-Chief is to be
referred to me. If I consider that any further action is
necessary, I will convene a further hearing into the matter
so that TVNZ/One News can be heard.

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